Introduction

All the land in all of Kenya is owned by the people in their various respective capacities as given in this excerpt from Article 61 from Chapter 5 - Land and Environment, of the Constitution of Kenya 2010:

61. (1) All land in Kenya belongs to the people of Kenya collectively as a nation, as communities and as individuals.

The National Land Commission NLC, is charged by the people to protect their individual and collective interests in land matters. Therefore, as a Commission, the NLC must "......(a) protect the sovereignty of the people; (b) secure the observance by all State organs of democratic values and principles; and (c) promote constitutionalism." (Article 249).

The New Constitution has sought to give clarity to the whole question of land use and ownership vis-a-vis individual and collective rights of the people of Kenya. The often emotive and confrontational issues of land use and ownership in Kenya are expected to be the subject of comprehensive deliberations years after the enactement of the New Constitution. These reviews aim - through both short and long-term measures by way of detailed legislation - to address, streamline and give clarity to the very many issues that surround land involving its classification, access, use, registration and ownership:

60. (1) Land in Kenya shall be held, used and managed in a manner that is equitable, efficient, productive and sustainable, and in accordance with the following principals— (a) equitable access to land; (b) security of land rights;(c) sustainable and productive management of land resources; (d) transparent and cost effective administration of land; (e) sound conservation and protection of ecologically sensitive areas; (f) elimination of gender discrimination in law, customs and practices related to land and property in land; and (g) encouragement of communities to settle land disputes through recognised local community initiatives consistent with this Constitution.

As an independent Commission, the NLC is best-placed to implement the principals and policies in the article 60 above governing all public and private land. Were this exercise to be left entirely to the National Executive, chances are that it would be dogged by endless bickering and delays as politics would invariably find its way into the mix.

And true to form, this prediction came to pass soon after the Cabinet was constituted in April 2013; on the one hand, the Cabinet Secretary for Land, Housing & Urban Development, and the Land Commission on the other, became immersed in a supremacy contest (over who has what functions and powers to do what) for the better part of 1 year, forcing the NLC to seek the Supreme Court's Advisory opinion on separation of powers and functions between it and the Ministry, thanks to the Constitution's Article 163. (6) in Chapter 10 - Judiciary, Part 2 - Superior Courts:

163. (6) The Supreme Court may give an advisory opinion at the request of the national government, any State organ, or any county government with respect to any matter concerning county government.

Upon receipt of the petition, the Supreme Court first attempted the way of reconciliation, "........ for the parties to engage one another in good faith, and to seek mutual understanding....... . Prior to the conduct of a hearing, the Court allows a 90-day interlude during which the parties may undertake a constructive engagement towards reconciliation and a harmonious division of responsibility."

However, the 90-day period (to July 2015) that the Court allowed for the parties to work out their differences elapsed without any meaningful resolution, and the matter was forced into full hearing.

The NLC had basically sought specific clarity on nearly two dozen questions on land matters it felt ought to be fully in its domain to manage and to administer effectively, and to be fully independent of the Executive by having staff, assets, and funding exclusive to it. Key among these were:

i) are Land Registrars (recorders of titles) and Land Surveyors answerable to the NLC, or to the Cabinet Secretary of the Ministry?

ii) what meaning is to be assigned to the words “to manage”, and “to administer” public land, unregistered trust land, and unregistered community land by virtue of Articles 62(2), 62(3), 67(2)(a) and 67(3) of the Constitution of Kenya; and Sections 5(1)(a) and 5(2)(e) of the National Land Commission Act No. 5 of 2012 [NLC Act]?

iii) which functions that were previously performed by the Ministry, before the creation of the NLC, have now been transferred to the NLC?

iv) should the Ministry relinquish the land-tax function, roles, records and powers to the NLC; .......?

v) is land registration a function of the NLC, or the Ministry?

vi) is it practical that the NLC be charged with the task of creating registration units, registration sections, or registration blocks; of prescribing nomenclature for land titling; of regulating rectification of land registers by Registrars; and of annually reporting to the President and Parliament as regards the progress made in the registration of title in land when the NLC is not the agency mandated to control the process of registration of land?

vii) is the Ministry obliged to transfer to the NLC all property and assets of the departments whose functions have now, by law, been transferred to the NLC; .......?

viii) which agency has the mandate to administer and manage dealings in private land?

On its part, the Court felt it necessary to "rescale" the 23 questions sought by the Commission to just the one question, that is, "What is the proper relationship between the mandate of the National Land Commission, on the one hand, and the Ministry of Land, Housing and Urban Development, on the other hand – in the context of Chapter Five of the Constitution; the principles of governance (Article 10 of the Constitution); and the relevant legislation?”

The Supreme Court delivered its opinion on the 2nd of December 2015. In the very extensive opinion, the Court was keen to emphasis its earlier view that the Commission and the Ministry are required to work in harmony by way of, "...... reconciliation and a harmonious division of responsibility.", and that it was impossible to demarcate their independence:

309. ....... the allocation of discrete functions to the one or the other is not possible, or indeed necessary........

Upon examination of the historical issue of land injustices, it also noted the special place of the NLC saying:

285. The Court, thus, has to take into account the historical background of land issues in Kenya, that necessitated the establishment of the NLC, and the mischief that the NLC was intended to cure in the allocation of public land.

However, there being separation of land administration from land registration, the Court was categorical that although the Commission has extensive roles in land administration under the law (specifically the Land Registration Act), it has no authority to register titles:

289. The foregoing sub-Section separates the role of “land administration” from “registration”, notwithstanding that the term “land administration” has a wider meaning under the Act, which suggests the inclusion of functions of registration of title. As implementation is of the essence, we are of the view that a definition on its own, does not confer any definite category of power; only by a substantive provision in the relevant Act, can a specific head of power be vested upon any agency. As observed in para. 287, the position is that, under the Land Registration Act, the NLC has no power to register title documents.

The Court however acknowledged that the Commission plays a part in the process leading to registration:

310. The NLC has a mandate in respect of various processes leading to the registration of land, but neither the Constitution nor statute law confers upon it the power to register titles in land. The task of registering land title lies with the National Government, and the Ministry has the authority to issue land title on behalf of the said Government.

The reader should note that the process leading to the Opinion revealed contradictions in the Acts that touch on Land, prompting the Court to advise the relevant agencies concerned with law reform to do something about it:

312. As already noted herein, the various statutes relating to land are not in all cases consistent among themselves; and in some cases they have been framed with imprecision, and without a clear reflection of the relevant principles of the Constitution. We recommend that the complete set of land-relatedstatutes, be placed before the Honourable the Attorney-General, and before the Kenya Law Reform Commission, for a detailed professional review, in the context of this Advisory Opinion.

The Chief Justice added his voice to the Opinion in choosing to highlight the importance of full and comprehensive public participation that has been lacking in the post-CoK 2010 reforms being undertaken in the statutes governing land in Kenya.

Moving on, the National Government will largely concern itself with policy on all matters touching on land and, in order to implement the said policies, prepare and present relevant Bills in the Houses of Parliament:

60. (2) These principles shall be implemented through a national land policy developed and reviewed regularly by the national government and through legislation.

The overhaul of land laws must not only be thorough, it must be preceded by comprehensive review efforts:

68. Parliament shall— (a) revise, consolidate and rationalise existing land laws; (b) revise sectoral land use laws in accordance with the principles set out in Article 60 (1); and (c) enact legislation— (i) to prescribe minimum and maximum land holding acreages in respect of private land; (ii) to regulate the manner in which any land may be converted from one category to another; (iii) to regulate the recognition and protection of matrimonial property and in particular the matrimonial home during and on the termination of marriage; (iv) to protect, conserve and provide access to all public land; (v) to enable the review of all grants or dispositions of public land to establish their propriety or legality; (vi) to protect the dependants of deceased persons holding interests in any land, including the interests of spouses in actual occupation of land; and (vii) to provide for any other matter necessary to give effect to the provisions of this Chapter.

Clearly, as a political institution, Parliament will always be a key and active player in the entire process to review the policies and legislation on land for the obvious reason that land remains embedded at the heart of the social, economic and political lives of the Kenyan people.

The whole issue of land in Kenya is addressed under the Public Land link.

Authority

The National Land Commission NLC is a constitutional Commission under the Constitution of Kenya 2010. Excerpts from Chapter 5 - Land and Environment, Part 1 - Land, Article 67, 248:

67. (1) There is established the National Land Commission.

248. (2) The commissions are— (b) the National Land Commission;

The Authority of the NLC is far-reaching and encompasses all land in Kenya including that which will be under the direct administration by the County governments. Excerpts from Article 62:

62. (2) Public land shall vest in and be held by a county governmentin trust for the people resident in the county, and shall be administered on their behalf by the National Land Commission, ....... .(3) Public land ....... shall vest in and be held by the national government in trust for the people of Kenya and shall be administered on their behalf by the National Land Commission.

To this end, the old powerful position of Commissioner of Lands would cease to exist after October 18, 2013 whereby its authority and functions were to be transferred to the NLC under the New Constitution's transitional provisions. The process was not without a hitch, however.

On the 25th October 2013, the Cabinet Secretary for Lands, had to de-gazette her own appointment of an acting Director-General for Lands made only a few weeks before on October 11, after both the Commission and Joint Committees of the National Assembly's and the Senate's Departmental Committees for Lands and Delegated Legislation stressed that the NLC was the sole body authorised by the Constitution and the law (the Land Act and Land Registration Act) to issue land title deeds. The Public Service Commission also explained to the Committees that the Cabinet Secretary had usurped her powers to create such a position within the Public Service.

The NLC is a custodian and partner to justice and arbitrator in so far as matters concerning land use and ownership in Kenya are concerned. It must first perform a situation analysis on the present state of land issues to bring itself up to speed in order to be an effective referee on matters of land.

Many of these matters are of a historical nature. Others are more recent and are as a result of the absence of adequate land policies. Excerpts from Article 67:

67. (2) The functions of the National Land Commission are— (e) to initiate investigations, on its own initiative or on a complaint, into present or historical land injustices, and recommend appropriate redress; (f) to encourage the application of traditional dispute resolution mechanisms in land conflicts;

Said the Chair of the NLC, “To us, this is a complaint we received from the national government represented by the President". The Commission began its probe by invoking its authority to conduct such an investigation when it summoned the owners of the said land to appear before it. Article 252:

252. (3) The following commissions and independent offices have the power to issue a summons to a witness to assist for the purposes of its investigations— (c) the National Land Commission; ........

Roles and Functions

The NLC will be the official manager of all public land. Further to that at the local level, the NLC will play an oversight role over county policy laws governing the use of public land within their respective jurisdiction, to ensure checks and balances:

67. (2) The functions of the National Land Commission are— (a) to manage public land on behalf of the national and county governments; (h) to monitor and have oversight responsibilities over land use planning throughout the country.

In a bid to decentralise the functions of the Commission in the management of public land, the National Land Commission Act 2012 mandates the NLC to liaise with County governments to form County Land Management Boards. Sections 17 and 18 of the Act:

17. In carrying out its functions, the Commission shall work in consultation and co-operation with the national and county governments subject to Article 10 and Article 232 of the Constitution.

18. (1) The Commission shall, in consultation and co- operation with the national and county governments, establish county land management boards for purposes of managing public land.

(8) In the discharge of their functions, the boards shall be comply with the regulations made by the Commission under this Act. (9) The boards shall - (a) subject to the physical planning and survey requirements, process applications for allocation of land, change and extension of user, subdivision of public land and renewal of leases; and (b) perform any other functions assigned by the Commission or by any other written law.

One of these functions is private land acquisition and owner compensation by Government. On the 14th of October 2014, the Chair of the NLC was categorical that the mega Lapsset Corridor project was in contravention of the Constitution because it had not involved the Commission in the process of acquiring, valuing, and compensating private land owners through whose land the transport project's infrastructure would be laid. The Government had instead delegated that function to the State organs involved in the project. "None of them has the mandate to do land valuation and compensation except NLC. All of them hijacked the mandate of the commission." (Swazuri, 2014).

In the final end of things, the NLC must become the custodian of all data relating to land, its resources and use in line with separation of powers previously belonging to the Government. This is expected to pit it and the National Government (and its attendant politically-driven sense of judgement) for the 'right' to handle land matters, in the foreseeable future. In all fairness, the Commission is really the de-jure adviser to the National Government (and by extension, the County Governments), on ordinary matters relating to land;

67. (2) ....... (d) to conduct research related to land and the use of natural resources, and make recommendations to appropriate authorities; (b) to recommend a national land policy to the national government; (c) to advise the national government on a comprehensive programme for the registration of title in land throughout Kenya;

In line with the mandate in Sub-Clause (c) above,the National Land Commission NLC sent out an invitation in July 2013 to all holders of Letters of Allotment of Private Land to present their documents for verification and subsequent registration and issuance of title deeds upon payment "....... of requisite stand premium and appropriate fees." This was done as a first step in line with the legal timeline binding the Commission to register all land in Kenya within 10 years. The National Land Commission Act No 5 of 2012, Section 5(3):

5. (3) Despite the provisions of this section, the Commission shall ensure that all unregistered land is registered within ten years from the commencement of this Act.

The NLC is also the de-jure adviser on taxation matters relating to land:

(2) ....... (g) to assess tax on land and premiums on immovable property in any area designated by law; .......

The keen reader will note from Article 67 of the Constitution defining the roles and functions of the NLC that its primary responsibilities are largely of an oversight and advisory nature over other national and county agencies whose mandate is more core in respect to matters of land. Indeed, this fact was highlighted in one of the Supreme Court's Judge's consenting opinion emphasising that the nature of the Commissions's executive scope was indeed limited. Said the Judge of the Supreme Court, Njoki Ndung'u:

358. Similarly, the institutions so crafted under the Constitution, must also not run contrary to the general remit of the functions of Chapter 15- institutions. As oversight institutions, any mandate that they are given in the Constitution of Kenya must be construed as narrowly as possible so as to avoid role conflicts; and should not be extended unreasonably by statute.

The Judge drew the attention of the NLC to the specific verbs in the Article 67 to make her point, repeated herebelow for reference and italicised for emphasis:

"To my mind, the language of Article 67(2)(b) to (h): as to the functions of the National Land Commission, is clear and specific:“…(b) to recommend a national land policy to the national government;(c) to advise the national government on a comprehensive programme for the registration of title in land throughout Kenya;(d) to conduct research related to land and the use of natural resources, and make recommendations to appropriate authorities;(e) to initiate investigations, on its own initiative or on a complaint, into present or historical land injustices, and recommend appropriate redress;(f) to encourage the application of traditional dispute resolution mechanisms in land conflicts;(g) to assess tax on land and premiums on immovable property in any area designated by law; and(h) to monitor and have oversight responsibilities over land use planning throughout the country” [emphasis supplied].

"The words ‘recommend, advise, research, investigate, encourage, assess, monitor and oversight’ – are all actions than provide a facilitative role rather than a primary one. The context in which those words are used, presumes that there is another body or organ whom such recommendations, advice, research, investigations, encouragement, and assessment shall be sent to, received by, and in relation to which the proposals shall be implemented. There is therefore a clear separation of roles between a body providing oversight, and a body upon which the oversight is to be conducted. In my opinion, this means that unless specified within the enabling constitutional provision, a body with oversight function, and a body that implements the recommendations of the former, are different, and their roles do not overlap."

Generally, this Advisory Opinion came as a rude shock to many who had mistakenly believed that most land transactions and functions had been taken away from the hands of the parent ministry - dubbed a "den of corruption" for decades, and given to the Commission. Indeed, the NLC chair was often in the news making bold declarations and not afraid to mix it with the Ministry's Cabinet Secretary.

Composition

Muhammed A Swazuri Chair of the National Land Commission

The New Constitution is surprisingly silent on the formation and composition of the members of the National Land Commission. However a reading of the National Land Commission Act of 2012, confirms that it will be made up of a Chair and 8 other Commissioners after vetting by Parliament's Departmental Committee on Land and Natural Resources, to serve for a term of 6 years without the option of reappointment.

Although the National Land Commission Act came into effect in May of 2012, their gazettement did not happen without controversy, owing largely to petitions filed in the High Court and unexplained actions by the President. It took the intervention of the Court for that to happen. Their gazettement, "......... was delayed by reason of conservatory orders given by the High Court of Kenya in High Court petition No. 266 of 2012. That petition was subsequently withdrawn, and two other petitions by different parties, No.373 of 2012 and No.426 of 2012 were heard and dismissed by the High Court. This was on 12th October 2012. It is a matter of public record that on 15th October 2012, the Attorney General in writing informed the office of the President of the judicial developments and advised the gazzettement of the Commission Members."

In view of the continued refusal, neglect and/or failure by the President to make the appointment, two citizens filed petition No. 6 of 2013 the High Court. In giving its judgment on the petition the High Court made the following observations:

“The process of appointment of the chairperson and commissioners of the Commission set out in the First Schedule is imperative and no cause has been shown why it cannot be implemented to give effect to the provisions of Article 67 and 250(2). I also find and hold that failure to complete the appointment of the chairperson and members of the Commission undermines the value of good governance in that the institution intended to govern land law and prepare land policy remains in limbo for an indeterminate period."

The Court concluded by giving these orders that:

“ The President be and is hereby directed to comply with the provisions of paragraph 8 of the First Schedule to the National Land Commission Act and officially appoint the Chairperson and Members of the National Land Commission within seven (7) days from the date hereof”.

This order was given on 4th February 2013, and the 7 days thus expired on 11th February, 2013. (CIC Website, 2013).

Eventually, the Commissioners were gazetted on Wednesday 20th Feb, 2013.

References:

1. Constitution of Kenya, 2010. National Council for Law Reporting. The Attorney-General.